House Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs Oversight Hearing, "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act"

July 14, 2017

On July 13, 2017, the House Committee on Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs held an oversight hearing titled, "Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress in Section 5 of the Indian Reorganization Act." (IRA)

This is the second House Natural Resources (HNR) Subcommittee hearing in two months focusing on the IRA. At the first hearing, on May 24th Oversight and Investigations Subcommittee hearing titled, "Federal Natural Resources Laws Gone Astray," the hearing was scheduled spontaneously and Indian Country could not mobilize to attend, nor were any Tribal Leaders invited. However, NIGA was in attendance and monitored the hearing closely. The Subcommittee also just recently announced a third hearing scheduled for next week, July 18th, at 10:00 a.m., titled Examining Impacts of Federal Natural Resources Laws Gone Astray: Part II."

NIGA and our sister organizations are very concerned with this unprecedented scrutiny by House Resources Committee on the IRA, one of the foundational federal laws that put an end to the Allotment Era and ushered in eighty plus years of restoring tribal homelands and spurring economic development on our Reservations.

The Witnesses for yesterday's hearing were:

James Cason, Acting Deputy Secretary - U.S. Department of the InteriorPresident Kirk Francis, United South and Eastern TribesMayor Fred Allyn III, Town of Ledyard, CTDon Mitchell, Attorney/Author

Unfortunately, the Subcommittee again only one invited one Tribal leader to represent the views of Indian Country. Kirk Francis, President of the United South and Eastern Tribes and Chief of the Penobscot Nation, more than ably represented Indian Country's views on the land into trust issue and defended the benefits that tribes have had since the enactment of the IRA. NIGA Chairman Stevens was also in attendance at the hearing and thanked Chief Francis for his statement before the Subcommittee and more than ably representing the views of Indian Country.

It is clear that Chairman Bishop is developing a legislative proposal to amend the IRA to provide greater weight to state and local government concerns. Yesterday, Mr. Bishop specifically asked witnesses to submit such ideas for inclusion in his proposal. However, Mr. Bishop's proposal did not draw support from his colleagues, as both Republicans and Democrats on the Subcommittee defended the IRA's current structure and the regulations implementing those policies.

Second, it is also clear that Mr. Cason and the Interior Department are actively reviewing their land to trust policy, specifically the Interior Solicitor's 2014 M-Opinion, which attempts to define the term "under federal jurisdiction"-a question left open by the Supreme Court's 2009 Carcieri decision.

Detailed Hearing Summary

Similar to the May Oversight Subcommittee hearing, the title of yesterday's hearing ("Comparing 21st Century Trust Land Acquisition with the Intent of the 73rd Congress") was meant to imply that the IRA is an outdated law that has been used expansively to move Indian lands into trust without the consent of local and state interests.

The Subcommittee hearing memo (linked to below) claims that the IRA delegates "exceptionally broad authority" to move land into trust "regardless of the impact on state and local governments, and landowners.... The IRA contains no limits, conditions, or guidelines on the power of the Secretary to acquire lands and put them into trust for Indians." The memo ignores the significant limits and requirements imposed by Interior's land to trust regulations at 25 C.F.R. Part 151. Finally, the hearing memo includes a link to the Subcommittee's infamous May 2015 hearing memo, which described the government's Allotment and Assimilation policy as "humane"- these policies were responsible for the loss of more than 90 million acres of Native homelands and authorized the taking of Indian children from their homes, forcing them into government-run boarding schools.

The Subcommittee heard from the Interior Department's Acting Deputy Assistant Secretary, Jim Cason; Town of Ledyard Mayor Fred Allyn (who sued Connecticut tribes to impose taxes on leased slot machines); and anti-Indian activist Don Mitchell (who authored the 2016 book "Wampum: How Indian Tribes and the Mafia Invented Indian Gaming"). The sole tribal leader on the panel was Penobscot Chief Kirk Francis, President of the United South and Eastern Tribes (USET).

As expected, Allyn and Mitchell's testimony sought to undermine the IRA and cast doubt upon the Interior's authority and ability to represent Congress' intent when it passed the IRA in 1934. Allyn described his Town as the "host community for the Mashantucket Pequot Tribe" (an irony pointed out by Subcommittee Chairman LaMalfa who noted that the Pequot Tribe's existence long predates any township in Connecticut). The Mayor testified that the BIA land to trust process fails to address impacts on local communities such as the increased need for police services or loss of tax revenue. Mr. Allyn also took aim at the BIA's pending review of the Indian Trader Regulations, which he views as an attempt to stop state and local governments from collecting taxes from on-Reservation economic activity (such as extraction and exports).

Attorney Don Mitchell's testimony proved even more inflammatory and ahistorical. He testified that the IRA never repealed the policy of forced Assimilation of Indian people and thus remains a viable federal policy goal. On the subject of Indian tribes, Mitchell stated that "it's not tough at all [to become an Indian tribe] if you have the right lobbyist.... The Graton Rancheria and the Mashantucket Pequot and a list of people suddenly and instantaneously became Indian tribes because they had the attention of Congress."

President Francis in the question and answer session rebutted Mr. Mitchell point by point regarding Tribal recognition and land into trust. At the conclusion of the hearing, NIGA Chairman Stevens held a stern, but respectful conversation with Don Mitchell regarding his misguided views on the tribal recognition process and Indian gaming. Chairman Stevens admonished Mr. Mitchell regarding his written and oral history concerning the IRA and urged him to present both sides of his research in future testimony.

However, despite the tenor of the witnesses and the hearing memo, the majority of Members of the Subcommittee spoke in favor of the IRA, defending its purpose, intent, and continued need to help Indian tribes restore their homelands.

Distancing himself from the testimony of the Mayor and Mr. Mitchell, Subcommittee Chairman Doug LaMalfa (R-CA) pushed back against the anti-Indian rhetoric, reminding the witnesses, "Government doesn't create a tribe. God, our creator, creates things. We shuffle paper."

Ranking Member Rep. Norma Torres (D-CA) also sharply criticized Mr. Mitchell's implication that the IRA did not repudiate Assimilation, citing the purpose of the law to restore respect for tribal culture, sovereignty and tribal governments. "While we can never fully make up for the past, there is no question that the return of land to tribes was and continues to be critical to restoring the tribal way of life." Torres stated her support for a clean Carcieri fix, and endorsed the bill introduced by Rep. Tom Cole (R-OK), H.R. 130, which would amend the IRA to clarify that the Secretary has authority to place land into trust for all federally recognized Indian tribes.

Other members of the Subcommittee, including Reps. Raul Grijalva (D-AZ) (Ranking Member of the full Committee), Ruben Gallego (D-AZ), Jeff Denham (R-CA), Darren Soto (D-FL), Jack Bergman (R-MI), and Colleen Hanabusa (D-HI), spent their time during the question and answer portion of the hearing defending tribal sovereignty and the IRA land to trust process.

Rep. Gallego pointed out the fact that state and local governments have significant participation in the current land to trust process. He asked Mr. Cason whether tribes should have the same right to comment on proposed land use activities of local communities. Mr. Cason, perhaps misunderstanding the question, agreed "what's good for the goose is good for the gander."

Asked the same question, USET President / Penobscot Chief Kirk Francis pointed out the fact that the Penobscot Nation raised concerns with the development of paper mills and other industries on their Reservation border that polluted the Tribe's River. He stated, "In the end we didn't get to veto those projects ... and those projects went forward to the detriment of Indian territory. What we really have to do is recognize the sovereign rights of Indian Nations. These are the decision-making authorities of governments."

As noted above, HNR Chairman Rob Bishop was the lone Member to question the importance and intent of the IRA. He described the current tribal land to trust process as having loose requirements and regulations. He asked Mr. Cason whether Congress should take action to clarify the land trust process.

Mr. Cason replied that it is Congress' prerogative to amend the law, but in the absence of legislation, the Department will continue to implement the IRA to the full extent of the law. For purposes of the Carcieri decision, Mr. Cason noted that the Department is guided in part by 2014 M-Opinion of the Office of the Solicitor. He stated, "we're taking a look at firming up that a little bit differently to be more clear." Mr. Bishop asked whether the opinion ignores the Carcieri decision, and Mr. Cason replied, "No, but the criteria in the M Opinion is very loose, so I don't think it had any material distinguishing effect."

Mr. Bishop closed his participation in the hearing by asking all witnesses to submit written recommendations to amend the IRA to "bring coherence and certainty to the trust acquisition policy".

NIGA will continue to monitor this issue and provide additional updates as necessary. NIGA would like to extend our appreciation to President Francis and USET for their excellent representation of Indian Country's interests.

Please join NIGA next week at our Legislative Summit July 18-19 at our Headquarters in D.C. where the IRA and other pending issues will be discussed with Congresspeople and Senators. Please visit www.indiangaming.org for full details, or email Veronica Watters below.